Police v Boskey [2021] PGDC 160; DC7018 (18 November 2021)

DC7018

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 263 of 2021
BETWEEN

THE POLICE
Informant

AND

BUCKLEY BOSKEY
Defendant

Waigani: O Ore Magistrate

2021: 18^th of November
      

TRAFFIC OFFENCE – Driving Without Due Care and Attention – s 28(2) (a) – Road Traffic Rules- Road User Rules 2017

TRAFFIC OFFENCE- Trial- witness- Evidence- Unsworn Evidence- Decision on Verdict- Allegation of Driving Without Due Care and Attention- failure to established Elements of Driving without due care and attention- not guilty- Acquitted

PNG Cases Cited

R v Phillips Boike Ulel [1973] PNGLR 254
The State v Kasaipwalova [1977] PNGLR 257
Police v Apami [2020] PGDC 64; DC5061 (24 December 2020)
State –v- John Ekapa [2006] DC 518
Police v Lano [2021] PGDC 18:DC 5074
Overseas Cases

Bullock v The Queen [2019] SASCF 131 (29 October 2019)

References

Legislation

District Courts Act 1963
Motor Traffic Act
Road Traffic Rules – Road User Rules 2017

Counsel

Wamuru J, for the Informant

The Defendant in Person

RULING ON VERDICT

18^th November 2021

1. O Ore, Magistrate: The Defendant Buckley Boskey was charged with one count of Driving Without Due Care and Attention under section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017, a charge he pleaded not guilty to on 07^th October 2021.
   
2. Trial was conducted on Wednesday, 10^th November 2021 and concluded on the same day with both Prosecution and the Defendant calling in witnesses to give evidence.
   
3. This is now my ruling on verdict.
   

FACTS

4. Police alleged that the Defendant on the 04^th of November 2021 being the driver of a vehicle, a Hino Dump Truck bearing the registration number CBA 284 along the Hubert Murray Highway at Erima drove the said motor vehicle without due care and attention. A summary of these facts are contained in the information bearing the charge. See below.
   

“Being the driver of a motor vehicle, towit a Hino Dump Truck registration number CBA 284 upon a public street towit Hubert Murray Highway Erima did drive the said motor vehicle without due care and attention.”

5. The facts which are not in dispute are that the Defendant was driving a motor vehicle on the Hubert Murray Highway. He was driving the vehicle on the inside lane of the highway and had passed Gordons Market and was heading towards Erima and on to 9 mile which was his final destination.
   
6. Before coming to Erima there is a roundabout which leads off to 6 mile and 5 mile respectively. It is at this roundabout that the Defendant is alleged to have driven the vehicle without due care and attention causing damage to a vehicle a Taxi Cab bearing the registration number T9292.
   

ISSUE

7. The only issue before this Court is whether the Defendant drove the motor vehicle without due care and attention causing damage to another vehicle.
   

RELEVANT LAW

8. The Defendant has been charged under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017. This section provides as follows:
   

“(2) The driver of a motor vehicle on a public street must not–

drive without due care and attention;........”

9. The penalty itself for such an offence is provided for under Schedule 1 of the Road (Offences & Penalties Regulation) Act 2017 and carries a maximum penalty of K2500 as fine and an infringement fee of K500.
   
10. Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017 is similar or rather identical to Section 17 (2) of the Motor Traffic Act with the difference being that the later provides for Dangerous Driving and Negligent Driving and the former as General Driving Rules.
    
11. I now turn to the elements of the offence. It is important that the elements of the offence are established and each element must be proven beyond reasonable doubt if a conviction is to stand. In the case of State v John Ekapa [2006] DC 518, a case where the Defendant was charged under Section 17 (2) of the Motor Traffic Act, His Worship Magistrate Manue set out the relevant elements of the Offence.
    
12. Given the similarities in both the Road Traffic Rules – Road User Regulation 2017 and the Motor Traffic Act, I will adopt the process laid out by my bother Magistrate His Worship Magistrate Tanei in the case of Police v Apami [2020] PGDC 64; DC5061 (24 December 2020) where he took into consideration the case of State –v- John Ekapa [2006] DC 518 and find that there are 3 elements of the offence.
    
13. The Elements of the Offence are therefore that:
    
    1. A person drove a specific motor vehicle
    2. That vehicle was driven on a public road; and
    100. That vehicle was driven without due care and attention.
         
14. These are the elements that need to be proven beyond reasonable doubt for a conviction to stand.
    

EVIDENCE

Police Witnesses

15. The Police called in two (2) witnesses. The witnesses called in were:
    
    1. Moses Paiyo (Complainant)
    2. Senior Constable George Koma (Arresting and Investigation Officer)
       

1. Moses Paiyo
   

16. This witness is the complainant in this case. He has driven for over 20 years. He has been driving his Taxi for one year. During trial he identified the Defendant as the driver of the big truck that caused damages to his Taxi. He gave evidence that on a Saturday morning, he was driving from Gordons to 9 Mile on the left side lane. He says that he was driving ahead of a big truck.
    
17. He says that as soon as he came to the roundabout leading to five mile and six mile where the Erima Big Rooster is located, the big truck at his back bumped the back right side of his vehicle.
    
18. He said further that the big truck bumped into his vehicle and took off. He chased the vehicle to Wildlife round about where an argument ensued. Airport Police who were on patrol came and met them there and since it was a traffic case, referred them to the Four Mile traffic office.
    
19. At the traffic office at Four Mile, he gave his statement to the traffic officer and the Traffic Officer arrested the Defendant who is in Court now. When asked which lane the big truck was on, he said that it was on the inside right lane whilst he was on the outside/left lane. He confirmed that the accident happened on the roundabout.
    
20. The witness was shown a photograph taken of the damage to his vehicle which he identified as being taken by him. The photograph was admitted into evidence as Exhibit MP 1. The photographic evidence showed that there was damage done to the to the right side rear end of the vehicle just above the back right tyre.
    
21. In cross-examination, he was asked if he saw oncoming vehicles on the inside lane when he stopped at the roundabout. He responded by saying that he could see vehicles coming so he slowed down and took off. When asked further if when seeing the big vehicle on his right side/inside lane with the sign do not overtake turning vehicle, why did he continue. He said that he went first and the big truck should have waited.
    
    2. Senior Constable Greg Koma
       
22. This witness is a Senior Constable attached to the Four Mile Police Station. He says that on Saturday 04^th November 2021, he received a complaint about an accident that took place at Erima Big Rooster roundabout involving two (2) vehicles. The two vehicles involved in the accident were a Toyota Mark II Sedan bearing the Registration Number T9292 owned and driven by the Complainant and a Hino Dump Truck with registration number CBA 284 driven by the Defendant and owned by Global Construction.
    
23. He says that both cars were heading towards Erima. The first car the Taxi Cab was on the outside lane (left) whilst the big truck was on the inside lane (right). At the Big Rooster roundabout, the Taxi was on the outer lane going first with the big truck coming behind. They both turned at the same time at the roundabout with the small car going first. When the big truck turned, it swiped the Taxi.
    
24. He says that Police findings showed that the big truck failed to look at its blind side before making the turn. On that alone the witness found the Defendant liable so he charged him. A Road Accident Report dated 04^th of November 2021 was shown to him and admitted into evidence as Exhibit GK 1. He confirmed seeing the damage to the Taxi as on the right side passenger side towards driver side above the rear tyre.
    
25. When asked in cross examination if the Taxi had bumped into the big truck and not the other way around, he said that both vehicles were parallel and the Taxi was in his blind spot and was side swiped by the big truck.
    

Defence Witnesses

26. The Defendant was by himself at that time and gave evidence. The Defendant decided to give unsworn evidence from where he stood. Thus there was no need for cross examination by the Prosecution.
    

Buckley Boskey (Defendant)

27. The Defendant is a 40 year old male from Kabilon Village, Duke of York Island, Kokopo, East New Britain Province. He has over 10 years’ experience as a heavy vehicle driver. In giving his statement, he stated that on Saturday 04^th of November 2021 around 8am and 8:30am, he was driving on the Poreporena Highway travelling to 9 mile. He drove close to the Erima roundabout and since it was busy at that time, he came to a complete stop. He waited for the roundabout to be free and when it was free, he took off, he did not notice the Taxi on his outside lane. He says that the Taxi and his vehicle took off together parallel to each other. He turned his vehicle so that the back trailer should be on his lane. He says that he needed space at the front to turn and as he was turning he felt that the truck had hit something.
    
28. He says that he did not see the Taxi on his left hand side which was his blind side. He swung the steer of the vehicle and saw the Taxi and tooted his horn 2 times and stopped. He says that he then drove and wanted to stop but it was crowded so he drove to wildlife roundabout and stopped. There he argued with the Taxi driver and the 7 mile police came. The Taxi driver stopped them and they were sent to Boroko Traffic. He says that at Boroko, both drivers did their statements and gave it to the arresting officer. He says that the arresting officer wanted to arrest Moses (the complainant) but Moses stood on his ground that his vehicle was damaged. Because of this he says that they were referred to another arresting officer. He stated that this arresting officer saw the damage on the taxi and said that they were travelling parallel and charged the Defendant because he was supposed to give way.
    

ANALYSIS OF EVIDENCE

29. The prosecutions first witness in this case is the Complainant. At the time of the accident he was driving alone and on the outside lane which is the left lane. He gave general details of the events that took place leading up to the accident. When asked in cross examination why he did not give way to a big turning vehicle with a warning sign to that effect, he simply answered by saying that since he was travelling ahead, the big truck should have waited. A photograph tendered into evidence as Exhibit MP 1 shows damage done to his vehicle.
    
30. The Prosecutions second witness is a Senior Constable attached to the Four mile Police Station. For avoidance of doubt, the Four mile Police Station is the same as Four Mile Traffic Office and both are used interchangeably. This witness gave an account of his investigations into the matter. I find his account of events quiet impressive, even more so impressive then the Complainant’s account. His account is all hearsay based on the statements given to him by the Complainant and the Defendant. I also find it interesting that he decided to arrest and charge the Defendant based on his finding that the big truck failed to look at its blind side before making the turn.
    
31. Evidence given by the Defendant was unsworn. His evidence is impressive and consistent. He says that when turning at the roundabout at Erima, the Taxi was on his blind side and he did not see it. It was only when he drove off and was turning when he realised that he had hit something. He also further states that at the Police Station at four mile, the Complainant was about to be arrested when he stood his ground and the matter referred to another arresting officer who arrested him after finding that he was at fault.
    

DISCUSSION OF LAW AND EVIDENCE

32. I will now discuss the law and the evidence before me. Where a person is charged for Driving without due care and attention, the prosecution/police must establish that the person drove a vehicle on a public road, and drove that vehicle without due care and attention.
    

Unsworn Evidence

33. Unsworn Evidence is evidence given in Court without first taking an oath or affirmation. Generally, it is not subjected to be tested in Court. In other words, it is untested evidence. As to its applicability and the degree of weight given to it, I find solace in the case of The State v Kasaipwalova [1977] PNGLR 257; R v Phillips Boike Ulel [1973] PNGLR 254. A passage in the case reads:
    

“The jury should take the prisoners statement as a possible version of the facts and consider it with the sworn evidence giving it such weight as it appears to be entitled to in comparison with the facts clearly establish by the evidence":

34. Going by the above cases, I am now faced with the question of what weight should be given on the unsworn evidence given by the Defendant during trial. For what it’s worth, I will gill give weight to the Defendant’s evidence in so far as the evidence corroborates with the prosecution’s evidence in confirming that the Defendant did drive a motor vehicle on a public road.
    
35. From the evidence before me, I find that the first two elements of the offence have been proven beyond reasonable doubt. I find that there is evidence proving that the Defendant was the person that drove the vehicle on a public road being the Hubert Murray Highway.
    

Driving without Due Care and Attention

36. Driving without due care and attention is not defined under the Motor Traffic Act or the Road Traffic Rules – Road User Rules 2017. I have taken the liberty to see if other pieces of legislation in Papua New Guinea have defined this term save to say I have come across none that do so. Thus I decided to search elsewhere in other jurisdictions.
    
37. In Bullock v The Queen [2019] SASCF 131 (29 October 2019), a case in the Supreme Court of South Australia, the following passage relating to the definition of driving without due care is taken;
    

“[14] ... So driving without due care is this: the obligation in law is to drive with due care, that is, to exercise the standard of care which one would expect of a reasonably prudent driver in like or similar circumstances. The reasonably prudent driver is expected to drive with a defensive outlook that not only sees immediate or immediately developing danger but looks well ahead and searches for potential danger.”

38. I will adopt the above definition. In short, Driving without due care and attention is driving that falls below the standard expected of a competent driver or driving that does not show reasonable consideration for other persons using the road. Furthermore, as per His Worship Magistrate Komia in the District Court Case of Police v Lano [2021] PGDC 18:DC 5074, driving without due care and attention can also be attributed to a blunt regard of the road safety rules. An extract of His Worship Magistrate Komia decision:
    

“Negligent driving or driving without due care is therefore, and an act of carelessness attributed by ignorance and blunt disregard of the road safety rules such as driving a vehicle that is unregistered, improperly serviced, with smooth tyres, no rear lights, no park lights, no brake lights and signal lights, no proper brake pads, exhaust puffing excessive smoke and many other related matters regarding a motor vehicles use by its owner or persons without due regard to the general safety of the public. Apart from that, even if the vehicles are full serviced and functional, if a driver fails to give way at a give-way sign despite an oncoming vehicle, fails to give its signal indicator when approaching to turn at an intersection of the road with multiple junctions, and speeding down a road without due regard to the speed limits, then these are all examples of the act of negligence by a driver. It is not a one off definition. The actions of a driver create the scenario of negligence.”

39. Given the above excerpts, I now ask myself this question; to who does this obligation to drive with due care and attention apply to? Does it apply to the Complainant or does it apply to the Defendant? To answer these questions, I turn to the District Court case of Police v Apami [2020] PGDC 24; DC5061. It is in this case I find that due care and attention applies both ways. In the words of my brother Magistrate Tanei:
    

“...due care and attention operates both ways. Whilst the Defendant has a duty to drive with due care and attention, the Complainant must also exercise the same”.

40. To the above I will also add that the obligation of driving with due care attention applies to all road users especially drivers of vehicles. In the course of driving, due care and attention must be exercised at all times if one is to avoid or prevent an accident from happening.
    
41. The evidence provided by the Complainant shows that he is partly to blame for the accident. Evidence given by him during-cross examination shows that when turning at the roundabout, he saw the big truck turning and when asked why he did not stop said that he went first and that the big truck should have stopped and waited for him. This tells me that the Complainant is not a prudent driver. His actions at that time were careless when he decided to continue on driving despite knowing fully well the potential dangers. A prudent driver would have seen the immediate danger developing and stopped or tooted his horn.
42. Evidence from the Prosecutions second witness showed that the Taxi was on the Defendants blind side. This in my mind places a greater responsibility on the Complainant by giving way and allowing the big vehicle to continue first. The Complainant had a clear view of the turning truck and should have taken steps to avoid being swiped. I also take note from the evidence by the prosecution that both vehicles came to a complete stop at the roundabout and were parallel to each other and took off. This meant that both vehicles were not speeding and the accident could have been easily avoided.
    
43. The evidence by the Prosecution does not prove that the Defendant drove without due care and attention. All it does is shows how the Complainant failed to drive with due care and attention.
    
44. I also make mention that at this stage I have not considered the evidence by the Defendant for reasons I have indicated above.
    

CONCLUSION

45. Considering the above, I find that the Prosecution has failed to prove their case beyond reasonable doubt. They have failed to prove that the Defendant did drive a motor vehicle without due care and attention.
    

COURT ORDERS

46. I therefore make the following orders;
    
    1. The Defendant is found not guilty for the offence of Driving without Due Care and Attention.
       
    2. The Defendant is acquitted and discharged.
       
    100. The Defendant’s bail money of K1000.00 is to be refunded immediately.
         

Lawyer for the Informant Police Prosecutions
Lawyer for the Offender: In Person